93 Decision Citation: BVA 93-21648
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 89-48 906 DATE APR 30 1993
(RECONSIDERATION)
THE ISSUE
Entitlement to an increased (compensable) evaluation for
generalized joint disease.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America Inc.
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from March 1969 to January 1971.
This matter initially came before the Board of Veterans' Appeals
(Board) on appeal from an April 1987 rating decision of the
Department of Veterans Affairs (VA) Regional Office and Insurance
Center (RO&IC) in Philadelphia, Pennsylvania, which, in pertinent
part, confirmed and continued a noncompensable schedular rating
for the veteran's generalized joint disease. The notice of
disagreement with this determination was received in September
1987. The statement of the case was issued in October 1987. The
substantive appeal was received in November 1987. Supplemental
statements of the case were issued in January 1988, January 1989,
and June 1989.
A personal hearing was held before a hearing officer at the RO&IC
in July 1989. The hearing officer entered his decision in
September 1989. Another supplemental statement of the case was
issued in December 1989. The appeal was received at the Board in
December 1989 and docketed in January 1990. The veteran's
accredited representative, Paralyzed Veterans of America, Inc.,
submitted written argument on his behalf in April 1990.
A decision was entered by the Board in June 1990, which, in
pertinent part, denied entitlement to a compensable disability
evaluation for generalized joint disease.
In September 1990, the veteran's representative requested
reconsideration of the June 1990 Board decision. An enlarged
panel consisting of two sections of the Board convened for
reconsideration of the June 1990 decision. In June 1991, the
panel remanded the case in order that the veteran might be
accorded an examination by a VA specialist in rheumatology. The
RO&IC took steps to comply with the remand. The veteran failed to
report for an examination and in a rating decision entered in
August 1991, the RO&IC again denied the claim. The appeal was
received and docketed at the Board in October 1991. The veteran's
representative submitted additional written argument to the Board
in September and October 1991.
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In March 1992, the enlarged panel of the Board again remanded the
case in order to provide the veteran another opportunity to
report for a special rheumatology examination. The veteran again
failed to report for the examination and the claims folder was
again forwarded to the Board, where it was received and docketed
in November 1992. The Paralyzed Veterans of America, Inc.,
submitted additional written argument to the Board later in
November 1992.
The case is now back before a reconsideration section of the
Board. This decision by the reconsideration section replaces the
June 1990 decision and is the final decision of the Board.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative essentially maintain that the
veteran has problems with his hands, feet, and knees, and these
difficulties warrant a compensable disability rating. The
representative points to findings on an April 1989 VA
rheumatology examination of tenderness of the proximal
interphalangeal joints of the hands with reduced flexion in
support of his contention that there is sufficient limitation of
motion of groups of minor joints to warrant the assignment of a
10 percent schedular rating.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. 7104 (West
1991), following review and consideration of all evidence and
material of record in the veteran's claims file, and for the
following reasons and bases, it is the decision of the Board that
the preponderance of the evidence is against the claim for a
compensable rating for the veteran's generalized joint disease.
FINDINGS OF FACT
1. The veteran has failed to report for VA rating examinations in
August 1991, March 1992, and October 1992.
2. The etiology of the veteran's complaints regarding his joints
is unknown because of his failure to report for rating
examinations.
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3. The service-connected generalized joint disease is not shown
to be productive of any appreciable functional impairment .
CONCLUSION OF LAW
The schedular criteria for a compensable disability evaluation
for generalized joint disease have not been met. 38 U.S.C.A.
1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5002
(1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of 38
U.S.C.A. 5107(a). That is, we find that he has presented a claim
which is plausible. We are also satisfied that no further
assistance is required to comply with the duty to assist the
veteran as mandated by 38 U.S.C.A. 5107(a). The Board has made
repeated attempts to provide the veteran with a compensation
examination, but he has failed to cooperate. The duty to assist
is not always a one-way street. Wood v. Derwinski, 1 Vet.App.
190, 193 (1991).
The veteran is seeking a compensable evaluation for generalized
joint disease. His disability evaluation is determined by the
application of a schedule of ratings which is based on average
impairment of earning capacity. 38 U.S.C.A. 1155; 38 C.F.R. Part
4. Separate diagnostic codes identify the various disabilities.
In exceptional cases where the schedular evaluations are found to
be inadequate, an extraschedular evaluation commensurate with the
average earning capacity impairment due exclusively to the
service-connected disability or disabilities may be approved
provided the case presents such an exceptional or unusual
disability picture with such related factors as marked
interference with employment or frequent periods of
hospitalization as to render impractical the application of the
regular schedular standards. 38 C.F.R. 3.321(b)(1) (1992).
The veteran's generalized joint disease is rated as rheumatoid
arthritis on the basis of limitation of motion of the affected
parts. Limitation of motion must be
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objectively confirmed by findings such as swelling, muscle spasm
or satisfactory evidence of painful motion. 38 C.F.R. Part 4,
Code 5002.
When the veteran was accorded an examination by VA in March 1971,
shortly after separation from service, he complained of pain in
the hands, shoulders, hips, and feet. Examination of all joints
was negative, except for minimal swelling and deformity of all
interphalangeal joints. The veteran complained of pain on motion
of the fingers, but there was no loss of motion. There was
minimal swelling of the toes, but again, there was no loss of
motion. The clinical diagnosis was generalized, minimal
degenerative joint disease.
Subsequent medical evidence includes a discharge summary
pertaining to VA hospitalization from September to December 1985,
primarily for psychiatric purposes. Orthopedic consultation
during hospitalization resulted in a clinical impression of
rheumatoid arthritis of the feet, knees, lower back, and hands.
The veteran was seen in VA outpatient consultation in May 1986
complaining of pain, aching and swelling of the joints of the
hands, feet, and other joints. There was stiffness to passive
manipulation of the metatarsophalangeal joints of each foot.
There was also slight joint stiffness to passive manipulation of
the right 1st and 2nd metacarpophalangeal joints. The veteran was
prescribed exercises, analgesic liquid, and 600 milligrams of
Motrin to be taken three times daily for pain relief. He was also
prescribed an electric heating pad.
At the time of examination by VA in February 1987, X-ray studies
of the hands and feet showed no pertinent abnormality. Clinical
examination disclosed slight depression of the longitudinal arch
of the left foot and slight hallux valgus of the right foot.
There was joint stiffness to passive manipulation of the
metatarsophalangeal joints of both feet. The diagnoses included
hallux valgus of the right foot and tendomuscular strain of the
feet.
Another VA examination was performed in March 1987. It was
reported that all of the veteran's phalanges were tender. The
fingers exhibited good range of motion. There was some minor
swelling in all the fingers. Grip was strong. The feet were
tender, with no swelling. Dorsiflexion was to
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10 degrees, while plantar flexion was to 30 degrees. The
pertinent diagnosis was rheumatoid arthritis of the hands and
feet (by history and examination).
The veteran was accorded an evaluation in a VA rheumatology
clinic in April 1989. It was indicated that although he had been
given the diagnosis of rheumatoid arthritis in the past, this was
"certainly not clear, given absence of erosive disease despite 15
years of symptoms." On examination it was stated he was status
post wrist fusion, secondary to nonunion fracture in 1981. The
right wrist exhibited slightly decreased flexion. There was
tenderness in the proximal interphalangeal joints. There was a
full range of motion of the hips and knees. Crepitation was noted
in the right knee. The ankles were within normal limits. There
was tenderness of the feet at the metatarsophalangeal joints.
X-ray studies were negative for arthritis, but osteopenia was
noted. The osteopenia was reported to be supportive of the
presence of rheumatoid arthritis. The examiner planned to repeat
the rheumatoid factor test.
Unfortunately, there is no subsequent medical evidence. Because
of the equivocal findings, the Board made repeated attempts to
obtain clarification concerning the nature of the veteran's joint
disease. Our ability to evaluate the nature and extent of
disability has been limited by the veteran not appearing for
examinations in August 1991, March 1992, and October 1992. Thus,
although notation has been made of tenderness and the veteran's
subjective complaints of pain, the evidence which is available to
us does not provide an adequate basis for us to conclude that the
joint symptoms are due to the service-connected generalized joint
disease. We note that the veteran was required to report for the
scheduled VA examinations. 38 C.F.R. 3.326 (1992). The veteran
has failed to do so. The preponderance of the evidence currently
before us is against the veteran's claim for a compensable
rating. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, Code 5002.
Consideration has also been given to the potential application of
the various provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the veteran, as required by Schafrath v.
Derwinski, 1 Vet.App. 589 (1991).
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However, those sections do not provide a basis upon which to
assign a compensable disability evaluation. The evidence
discussed above does not suggest that the generalized joint
disease presents such an exceptional or unusual disability
picture as to render impractical the application of the regular
schedular standards, so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. 3.321(b)(1). For
example, the joint disease has not required frequent periods of
hospitalization, nor has it been shown to present marked
interference with employment. Thus, we conclude that the current
appeal on reconsideration must fail.
ORDER
A compensable evaluation for generalized joint disease is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
_________________________ ____________________
JOHN J.CASTELLOT, SR., M.D. SHANE A. DURKIN
_______________
ROBERT E. SULLIVAN
_________________________ _____________________
C. E. EDWARDS, M.D. ANTHONY FAVA
_________________________
H. H. CLARK
(CONTINUED ON NEXT PAGE)
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NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to
the United States Court of Veterans Appeals within 120 days from
the date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before the
Board was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, 402 (1988). The date which appears on the face of
this decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans' Appeals.